Professional Documents
Culture Documents
Volume 85 | Issue 6
January 2008
Recommended Citation
James A. Bloom, Plurality and Precedence: Judicial Reasoning, Lower Courts, and the Meaning of United States v. Winstar Corp, 85 Wash.
U. L. Rev. 1373 (2008).
Available at: http://openscholarship.wustl.edu/law_lawreview/vol85/iss6/4
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PLURALITY AND PRECEDENCE:
JUDICIAL REASONING, LOWER COURTS,
AND THE MEANING OF
UNITED STATES V. WINSTAR CORP.
INTRODUCTION
1. Compare John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in
the Supreme Court, 1974 DUKE L.J. 59, 86 (“[T]he evil inherent in decision by plurality is not a minor
one.”), and Douglas L. Whaley, Comment, A Suggestion for the Prevention of No-Clear-Majority
Judicial Decisions, 46 TEX. L. REV. 370, 370 (1967) (stressing the importance of preventing plurality
decisions and “eliminating the havoc they create in the judicial system”), and Note, Plurality
Decisions and Judicial Decisionmaking, 94 HARV. L. REV. 1127 (1981) [hereinafter Harvard Note],
and Mark Alan Thurmon, Note, When the Court Divides: Reconsidering the Precedential Value of
Supreme Court Plurality Decisions, 42 DUKE L.J. 419 (1992), and Ken Kimura, Comment, A
Legitimacy Model for the Interpretation of Plurality Decisions, 77 CORNELL L. REV. 1593 (1992), and
Adam S. Hochschild, Note, The Modern Problem of Supreme Court Plurality Decision: Interpretation
in Historical Perspective, 4 WASH. U. J.L. & POL’Y 261, 287 (2000) (describing plurality opinions as
“inherently muddled and fragmented”), with Linda Novak, Note, The Precedential Value of Supreme
Court Plurality Decisions, 80 COLUM. L. REV. 756, 760 (1980) (characterizing plurality opinions
merely as Supreme Court admissions of uncertainty and as providing an opportunity for reasoned
development of the law in the lower courts), and Comment, Supreme Court No-Clear-Majority
Decisions: A Study in Stare Decisis, 24 U. CHI. L. REV. 99, 155 (1956) [hereinafter Chicago Study]
(concluding neutrally that courts generally treat the lead opinion in a no-clear-majority decision with
the same precedential weight as simple majority opinions), and Saul Levmore, Ruling Majorities and
Reasoning Pluralities, 3 Theoretical Inquiries Into Law 87 (2002) (discussing how plurality voting,
which is given some precedential weight by courts, might be used in legislatures and referenda), and
Joseph M. Cacace, Note, Plurality Decisions in the Supreme Court of the United States: A
Reexamination of the Marks Doctrine After Rapanos v. United States, 41 SUFFOLK U. L. REV. 97, 99–
101 (2007) (arguing that a consistent method for interpreting plurality decisions can help harness the
value these opinions possess).
2. See Harvard Note, supra note 1, at 1128 (“[The Supreme Court] must provide definitive
statements of the law. . . . [W]ithout a majority rationale for the result, the Supreme Court abdicates its
responsibility to the institutions and parties depending on it for direction. Each plurality decision thus
represents a failure to fulfill the Court's obligations.”); see also Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the
law is.”) (emphasis added); BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 124
(1921) (“[T]he power to declare the law carries with it the power, and within limits the duty, to make
law when none exists . . . .”).
3. See Davis & Reynolds, supra note 1, at 62 (describing how “a collective confusion” results
from plurality opinions); Thurmon, supra note 1, at 427 (asserting that plurality opinions “significantly
1373
however, that the Supreme Court will stop issuing opinions in which a
majority of Justices cannot agree on any one controlling rationale for the
decision.4 Many plurality decisions address fundamental—or even
politically charged—legal issues.5 Other pluralities address less headline-
grabbing issues, but can still be important in the day-to-day practice of
law.6 A consistent method for interpreting plurality opinions would reduce
some of the confusion pluralities generate. Not only would courts benefit
from such a consistent method, but ordinary people and businesses could
more effectively shape their behavior to avoid litigation if they had a
better sense of how these decisions would apply.7 Moreover, if lower
courts more fully analyzed the reasoning in plurality opinions, it would
help clarify and resolve the issues that split the Supreme Court in the first
place.
This Note examines both the main criticisms of plurality decisions and
the various methods of interpreting plurality decisions used by lower
courts—through the lens of how lower courts have addressed one
particularly complex plurality, United States v. Winstar Corp.8 Part I.A of
this Note examines the academic criticisms of plurality decisions and
increase[] the burden on lower courts that are required to follow its decisions”); Kimura, supra note 1,
at 1594–95 (“The Supreme Court’s failure to articulate a single rule of law creates confusion in the
lower courts as [to] how to interpret and weigh that decision.”); Whaley, supra note 1, at 371 (“[T]he
court’s inability to explain its decision in one majority opinion causes a breakdown in the judicial
system.”).
4. See Thurmon, supra note 1, at 427 (“[T]he Supreme Court has been unable to consistently
reach the consensus necessary to exploit [the] advantages [of clear-majority decisions].”). Especially if
plurality opinions represent irreconcilable differences between the Justices, the “practice” of issuing
plurality opinions is probably unintentional.
5. See, e.g., Hein v. Freedom From Religion Found., Inc., 127 S. Ct. 2553 (2007) (taxpayer
standing to challenge federal appropriations for religious charities under the establishment clause);
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (“enemy combatants” and constitutional protections); City of
Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (free speech and pornography); Albright v.
Oliver, 510 U.S. 266 (1994) (scope of civil action for deprivation of constitutional rights); Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (abortion); Walton v. Arizona, 497 U.S. 639
(1990) (the death penalty); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (affirmative
action). Others have compared plurality decisions to the “hard cases” described by Professor Ronald
Dworkin. Kimura, supra note 1, at 1594 & n.8.
6. See, e.g., Asahi Metal Indus., Co. v. Sup. Ct. of Solano County, 400 U.S. 102, 116–17 (1987)
(splitting in part over the meaning of sufficient minimum contacts).
7. Cf. Whaley, supra note 1, at 371 (arguing that when plurality opinions control the law in a
given area, “[p]otential litigants cannot safely formulate a policy that they know will conform with the
law, nor can the legal profession properly counsel them so as to avoid costly and unnecessary
litigation”); Harvard, Note, supra note 1, at 1128 (commenting that the Supreme Court “serves as a
guide for private parties,” who will presumably be unable to shape their behavior to the requirements
of the law if the Supreme Court issues a plurality opinion). If a more reliable method of predicting
lower court responses to plurality opinions were in place, these concerns would perhaps be alleviated.
8. 518 U.S. 839 (1996). See also infra note 46 (discussing why Winstar was selected for this
Note).
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I. BACKGROUND
9. See Chicago Study, supra note 1, at 101 (examining the way courts actually use “no-clear-
majority decisions as precedent,” and asking “whether or not [this use] is in accord with the theory put
forth in the texts”).
10. See Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. REV. 383, 388 & nn.19–20 (2007)
(describing how lower courts are absolutely required to follow the decisions of superior courts in the
judicial hierarchy).
11. See, e.g., Thurmon, supra note 1, at 422 & n.17 (“Stare decisis is simply a jurisprudential
version of the common-sense notion that things decided should not be unsettled . . . [but] this doctrine
does not require or create an absolute obligation to follow [the same court’s own] earlier decisions.”)
(emphasis added). An obligation to follow the court’s own earlier decisions is created, but it is not
absolute. See infra note 12.
12. See RUPERT CROSS & J.W. HARRIS, PRECEDENT IN ENGLISH LAW 72 (4th ed. 1991) (“[The
binding] ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a
necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a
necessary part of his direction to the jury.”).
When a case is factually distinguishable from an earlier case, stare decisis does not bind the court
to follow the earlier decision. These factually distinguishable cases are not exceptions to the rule of
stare decisis. The different facts create legal distinctions and the new case thereafter stands as
precedent restricting the applicability of the original precedent. However, there are limits to
differentiation based on facts. Professor Schauer commented that because “[n]o two events are exactly
alike,” an earlier case does not need to be totally identical to the present case. Frederick Schauer,
Precedent, 39 STAN. L. REV. 571, 577 (1987) (“Were [total identity] required, nothing would be a
precedent for anything else. . . . [I]t is clear that the relevance of the earlier precedent depends upon
how we characterize the facts arising in the earlier case.”). Otherwise, there would be no difference
between plurality opinions and clear-majority opinions: if the new case is factually indistinguishable
from the plurality, “result stare decisis” will control. See infra note 38. But if they are factually
distinguishable, not even a clear-majority decision would control. As such, we admit that even with
some degree of factual distinction, the earlier case controls. Nevertheless, because the earlier court did
not agree on a single line of reasoning, extra doubt is thrown into the process of determining which
factual differences make a difference.
13. The practice of writing and supporting opinions by groups of Justices was instituted by Chief
Justice Marshall, replacing the earlier practice of filing opinions seriatim, or individually. Filing
opinions seriatim probably derived from the practice of the English common law courts. See
Hochschild, supra note 1, at 263; Whaley, supra note 1, at 372–73 & nn.21–24.
14. Justices who join the majority sometimes concur by writing their own separate opinion
explaining the judgment. Sometimes, however, a Justice will support the outcome reached by the
majority but not the reasoning, and will concur separately without joining the majority opinion. The
Court calls this practice “concurring in judgment.” See Sonja R. West, Essay, Concurring in Part &
Concurring in the Confusion, 104 MICH. L. REV. 1951, 1953 (discussing the significance of the
phrases “concurring,” “concurring in part,” and “concurring in judgment”); Davis & Reynolds, supra
note 1, at 59 (noting that pluralities are introduced by some variation on “Mr. Justice A announced the
judgment of the Court and an opinion in which Mr. Justice B, Mr. Justice C and Mr. Justice D join”);
see also B. Rudolph Delson, Note, Typography in the U.S. Reports and Supreme Court Voting
Protocols, 76 N.Y.U. L. REV. 1203, 1220–22 (2007). As long as five Justices “join” the majority
opinion, it is still a clear-majority opinion.
15. The Court still rules on the disposition of the appeal—affirming, denying, or altering the
decision of the lower court—but a majority of the Justices cannot agree on any one rationale for their
ruling. See Thurmon, supra note 1, at n.1.
16. It is important to distinguish between the terms “plurality,” “plurality opinion,” and “plurality
decision.” A “plurality decision” is a no-clear-majority decision where one of the opinions is supported
by a “plurality” of the Justices. A “plurality opinion” is an opinion joined by more Justices than any
other opinion, the outcome of which is joined by a majority. The Supreme Court sometimes refers to
plurality opinions as “principal” opinions, and others have referred to them as “lead” opinions.
Mathematically, on any nine-judge panel, there must be at least three opinions for a decision to
lack an opinion joined by a majority of the Justices—a no-clear-majority decision. No combination of
two numbers totaling nine will ever fail to produce a majority. See Kimura, supra note 1, at 1594 (“At
least three opinions, resting upon diverse legal theories, are present in a plurality decision.”). Of the
possible combinations of three numbers that add up to nine, 4–3–(2) creates a plurality opinion (the
number two in parentheses indicates two dissenting Justices). Other types of no-clear-majority
decisions are 3–3–(3) and 4–4–(1) splits. However, in neither of these cases is there a plurality
opinion. But in a 4–1–(4) case, the opinion supported by four Justices (not the dissent) would also be a
plurality opinion, as would the decision supported by three Justices in a 3–2–(4) decision.
Occasionally, three-member courts will be unable to decide on one controlling rationale,
producing a plurality decision. See, e.g., Kandies v. Polk, 385 F.3d 457 (4th Cir. 2004).
17. See, e.g., Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Searching for the Soul of
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Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 OHIO ST. L.J. 491
(2004) (empirically testing and finding support for the hypothesis that judges’ religious backgrounds
influence their decisions about religious freedom).
18. See, e.g., Muller v. Oregon, 208 U.S. 414, 419 n.† (1908) (citing foreign statutes presented
by Louis Brandeis in the “Brandeis Brief” as persuasive authority for upholding an American state
statute as constitutional).
19. Thurmon, supra note 1, at 420 & n.3.
20. Without a majority of Justices supporting a particular rationale, the traditional precedential
value assigned to clear-majority opinions is absent. See, e.g., Novak, supra note 1, at 758; Chicago
Study, supra note 1, at 100 & n.10; Kimura, supra note 1, at 1596 (“The absence of a simple majority
creates precedential uncertainty in plurality decisions.”). In 1910, the Supreme Court ruled that any
opinion not supported by a majority was not binding. Hertz v. Woodman, 218 U.S. 205, 213–14
(1910). However, Hertz is rarely cited for this proposition, and the way courts actually apply plurality
opinions belies the statement that they have no weight whatsoever.
21. Contra Davis & Reynolds, supra note 1, at 61 (arguing that plurality opinions are purely
advisory, “represent[ing] nothing more than the views of the individual justices who join in the
opinion . . . [and] do not, therefore, essentially differ in character from either a concurring opinion or a
dissenting opinion”).
22. Texas v. Brown, 460 U.S. 730, 737 (1983) (plurality opinion) (holding that while one
particular plurality opinion was “not a binding precedent, as the considered opinion of four Members
of this Court it should obviously be the point of reference for further discussion of the issue”).
The Supreme Court’s most famous ruling about the precedential value of plurality opinions came
in Marks v. United States, 430 U.S. 188 (1977). In Marks, the Court ruled that some portions of
plurality opinions could be treated as binding. “When a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be
viewed as that position taken by those Members who concurred in the judgments on the narrowest
grounds.” Id. at 193. However, both the Supreme Court as well as other courts and commentators have
balked at treating the Marks approach as the default rule for interpreting pluralities. See, e.g., Grutter
v. Bollinger, 539 U.S. 306, 325 (2003) (“[The Marks] test is more easily stated than applied . . . .”
with plurality decisions accord them more weight than simple persuasive
authority, sometimes even applying the plurality’s reasoning as if it were
from a clear majority.23 Indeed, if courts do in fact give pluralities
precedential weight above mere persuasive guidance, at the very least this
internal valuation by courts indicates that the precedential authority of
plurality decisions deserves greater consideration.24
(quoting Nichols v. United States, 511 U.S. 738, 745–46 (1994))); Hochschild, supra note 1, at 280–
81.
While Marks and Brown alone might not prove the middle ground of authority suggested above,
these cases are evidence that the Court takes these decisions seriously and wants other courts to do the
same.
23. See Chicago Study, supra note 1, at 154–55 (discussing the value of “understanding actual
citation practices” of lower courts regarding no-clear-majority decisions).
24. See KARL LLEWELLYN, THE BRAMBLE BUSH 11 (1930) (law is “[w]hat . . . officials do about
disputes”); JULES COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENSE OF A PRAGMATIST APPROACH
TO LEGAL THEORY 25 (2001) (arguing that analytical models can fail if they “ignore[] . . . the actual
inferential practices of participants” in the relevant institutions). If courts and lawyers feel that
plurality decisions, and the opinions that comprise them, have some level of binding authority
independent of any narrowest grounds justification, why not create a system for interpreting these
decisions that preserves this unique status?
Of course, the mere fact judges give plurality opinions weight above that of mere persuasive
authority does not stand as sufficient normative, ethical, or moral justification for this practice. There
may be other reasons to apply the reasoning from plurality opinions as more than persuasive guidance.
Nevertheless, when lower courts value plurality opinions as more than persuasive authority, this
valuation is likely indicative of an implicitly perceived duty on the part of judges to apply these
opinions in this way. This Note explores this perceived duty.
25. A fifth criticism leveled by some commentators is that plurality opinions reduce the public’s
faith in the judicial system. See Davis & Reynolds, supra note 1, at 62 (“[T]he fact that an opinion is
supported by only a plurality of the Court may compromise its . . . public acceptance.”). But this seems
like an odd criticism, as probably only judges, lawyers, lawmakers, and certain academics are
consciously aware that plurality decisions exist. See, e.g., Bill Mears, A Mixed Verdict for the Terror
War, CNN.com, July 6, 2004, http://www.cnn.com/2004/LAW/06/28/scotus.terror.cases/ index.html,
(using phrases like “verdict”, “ruled”, and “the Justices said in a ruling” to describe Hamdi, but not
mentioning that Hamdi was a plurality opinion joined by only four Justices).
26. See supra note 3.
27. See supra note 2.
28. See supra note 8.
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29. Harvard Note, supra note 1, at 1128, 1140–46 (“[P]lurality decisions [are] symptomatic of a
fundamental flaw in the Supreme Court’s current approach to decisionmaking, which relies
excessively on value-laden ‘substantive reasoning.’”).
30. Marks v. United States, 430 U.S. 188, 193 (1977). See also Novak, supra note 1, at 761–67
(describing the origins of the narrowest grounds test); Hochschild, supra note 1, at 280–81; supra note
24.
31. Kimura, supra note 1, at 1603–04; see also Novak, supra note 1, at 761–67; Thurmon, supra
note 1, at 420–22, 427–50. There are a number of reasons why courts and commentators have been
reluctant to accept the Marks approach as the final word on the subject of pluralities, not the least of
which is the Supreme Court’s own ambivalence about the Marks rule. See Thurmon, supra note 1, at
446 (arguing that the Supreme Court’s reluctance to apply the Marks rule renders the rule a “legal
fiction”). Moreover, the Marks rule cannot apply if none of the Justices concurring in judgment agrees
on any rationale.
For recent treatments of the Marks rule, see Audio file: How Should the Courts Interpret Split
Decisions?, teleconference panel held by the Federalist Society (June 21, 2007) (available at
http://www.fed-soc.org/publications/pubID.328/pub_detail.asp) (remarks of Sentelle, J.); Cacace,
supra note 1, at 113–21 (describing Marks in terms of social choice theory). While these
commentators address the benefits and problems with the Marks rule, the purpose of this Note is to
address the phenomena of Supreme Court plurality opinions more theoretically and offer an alternative
to the Marks rule for interpreting plurality opinions.
32. Others point out that the term “narrow” itself is ambiguous. See Novak, supra note 1, at 763–
65; Thurmon, supra note 1, at 428–42; Hochschild, supra note 1, at 279–81.
33. See infra notes 242–45 and accompanying text.
34. See infra notes 246–47 and accompanying text. The critical difference between this
formulation of the narrowest grounds approach and the dual majority method is that the dual majority
method allows reasoning supported by the dissent and one of the concurring opinions to be given
precedential weight. The narrowest grounds approach as articulated by the Supreme Court is
specifically restricted to opinions shared by Justices concurring in judgment.
35. Novak, supra note 1, at 767 (“[If] the concurring and dissenting opinions share a common
line of reasoning, but differ in their application of the law to the facts . . there are in effect two
majorities: the plurality and concurrence agreeing on the result, and the concurrence and dissent
agreeing on the fundamental legal principals involved.”). See also Thurmon, supra note 1, at 453.
36. Kimura, supra note 1, at 1602 (defining the dual majority method as “recogniz[ing] a binding
legal rule . . . when the dissenting opinion and one of the concurring opinions advocate the same legal
rule”).
37. See id.
38. Novak, supra note 1, at 769 (defining the citation for specific result method as a resort to
“result stare decisis,” whereby the lower court “confin[es] the precedential value of a decision to its
specific result and declin[es] to regard any particular line of reasoning as authoritative”).
39. Id. at 773–74 & nn.80–84 (defining disavowal as a lower court’s decision “to follow the
dissenting rationale and come to a contradictory result on similar facts” when “faced with a plurality
decision presenting clear majority agreement on result”); see also Kimura, supra note 1, at 1618
(arguing that certain “complex” pluralities are “analytically incoherent and should be completely
disavowed”).
40. Novak, supra note 1, at 773 (noting that “it is rare for a lower court” to completely disavow
an on-point Supreme Court plurality). In writing this Note, I did not identify a single case that cited
Winstar yet explicitly refused to apply both the reasoning and the judgment because the decision was a
plurality. In fact, the commentators who have discussed the disavowal method have only identified one
case as explicitly disavowing a United States Supreme Court plurality. Id. at 773 (citing State v. Baker,
289 A.2d 348 (Md. 1972)).
It is also possible that the lower court might simply ignore the plurality entirely. Under these
circumstances, the court probably would not even cite to the plurality opinion. One possible example
of this might be Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729, 738 (8th Cir. 2005). In
Charleston, the Eighth Circuit discussed the unmistakability doctrine, but cited only to a Supreme
Court decision and an Eighth Circuit decision, both of which predated Winstar. See Charleston, 419
F.3d at 738 (citing Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 147 (1982) (an earlier Supreme
Court case discussed in Winstar)); id. (citing Parkridge Investors, L.P. v. Farmers Home Admin., 13
F.3d 1192 (8th Cir. 1994)).
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Fourth, there are two methods that I will refer to as the persuasive
opinion methods. I group the persuasive opinion methods because they
measure the relative persuasive worth of each of the different opinions in
the plurality to determine which opinion controls as binding precedent.
First, the full precedential weight method cites the opinion of the plurality
as if it were a majority opinion, ignoring the fact that no numerical
majority of Justices supported it.41 Second, the persuasive effect method
treats one opinion from the no-clear-majority decision as binding based on
how persuasive the lower court finds that opinion to be.42 Any number of
factors can influence this decision—political, personal, the reputation of
the Justice who wrote the opinion, how well reasoned the opinion is, or
how applicable it seems.
Finally, courts could use either of two closely related methods that
commentators have not previously described. The first of these two
methods may be called the simple reconciliation method. If a lower court
applying a plurality decision decides that both the plurality and concurring
opinions would produce the same result in the case it is considering, it can
avoid the ambiguous precedential value of plurality opinions and simply
apply both the plurality and concurrence.
The second of these two methods is the policy space method, which the
lower court can use when the plurality would reach one result, but the
concurrence would reach a different result under the facts it is
considering.43 Under the policy space method, the lower court must
determine whether to apply the plurality opinion, even though the lead
concurrence would not have agreed.44 This determination is based on the
lower court’s evaluation of the factual similarity between the earlier
41. Novak, supra note 1, at 774 (“Sometimes . . . there is no apparent justification for choosing
one rationale over another other than the fact that it was contained in the plurality opinion.”); Kimura,
supra note 1, at 1600 (describing how courts sometimes look to “the concurring opinion that the
largest coalition of Justices supports . . . for affirmative precedential guidance”); Thurmon, supra note
1, at 450 (commenting that some lower courts use a “method of according plurality opinions full
precedential respect”); Chicago Study, supra note 1, at 155 (“[F]ew citing courts expressly note the
lack of a clear majority in . . . no-clear-majority decisions.”).
42. Kimura, supra note 1, at 1601 (describing how under the persuasive opinion method “a lower
court might decide that a particular opinion is the most persuasive for any number of reasons” and
award it full precedential status); Novak, supra note 1, at 774 (“In some instances, lower courts have
regarded as authoritative a rule of decision that has not received majority support, perhaps because the
opinion is particularly persuasive or is written by a prestigious Justice.”).
43. Theoretically, a lower court could apply either the narrowest grounds or dual majority
method in the second step if the simple reconciliation method does not produce agreement based on
both the plurality opinion and the lead concurrence.
44. If the court automatically applied the plurality opinion regardless of whether the lead
concurrence would have agreed, the policy space method would be indistinguishable from the full
precedential weight method.
plurality and its own case, and partially on why the lead concurrence
would not have agreed.45
To illustrate these methods, this Note analyzes how lower courts have
applied one particular plurality opinion, United States v. Winstar Corp.46
Looking at specific examples of how courts deal with plurality decisions
can shed light on how this process both does work and should work.47
45. When the Supreme Court hands down a plurality decision, it grants the lower courts more de
facto discretion than existed previously or would have existed under a clear-majority decision. The real
issue is how lower courts should use that discretion. For an example of a constriction of lower court
discretion, see Kim, supra note 10, at 431 (“[W]hen the [Supreme] Court changes the governing legal
regime from an open-ended standard to a rule . . . the scope of the lower court’s discretion to decide
that particular issue is undeniably narrowed. Importantly, such an approach requires close attention to
the content of Supreme Court opinions . . . .”).
Thurmon’s “Hybrid Approach” is distinct from the policy space method. Thurmon, supra note 1,
at 451. Thurmon’s approach divides dicta from ratio decidendi, searching for one controlling rule for
each proposition of law. The policy space method, on the other hand, considers all of the tests put
forward by each Justice in comparison with one another.
46. 518 U.S. 839 (1996). Winstar is appropriate for this project for several reasons. First, Winstar
is complex and lengthy—ninety-nine pages in United States Reports. It would be disingenuous to talk
about how lower courts can and should interpret plurality opinions by picking a short or simple
plurality. Second, Winstar is now more than a decade old. This has given lower courts ample time to
confront the issues raised in Winstar, but the Supreme Court has not yet reexamined the issues to
provide firm resolution.
47. See Chicago Study, supra note 1, passim (empirically examining how lower courts make use
of no-clear-majority decisions).
48. 518 U.S. 839. This account, limited by length, is by no means an exhaustive look at the
Winstar decision. See also Joshua I. Schwartz, The Status of the Sovereign Acts and Unmistakability
Doctrines in the Wake of Winstar: An Interim Report, 51 ALA. L. REV. 1177 (2000); Joshua I.
Schwartz, Assembling Winstar: Triumph of the Ideal of Congruence in Government Contract Law?, 26
PUB. CONT. L.J. 481 (1997); Alan R. Burch, Purchasing the Right to Govern: Winstar and the Need to
Reconceptualize the Law of Regulatory Agreements, 88 KY. L.J. 245, 254 (1999); Jonathan R. Macey,
Winstar, Bureaucracy and Public Choice, 6 SUP. CT. ECON. REV. 173 (1998); Michael P. Malloy,
When You Wish Upon a Winstar: Contract Analysis and the Future of Regulatory Action, 42 ST. LOUIS
U. L.J. 409 (1998); Leo P. Martinez, Of Fairness and Might: The Limits of Sovereign Power to Tax
After Winstar, 28 ARIZ. ST. L.J. 1193, 1214 (1996); K. McKay Worthington, Note, Is Your
Government Contract Worth the Paper It’s Written On? An Examination of Winstar v. United States, 1
COLUM. BUS. L. REV. 119, 125–29 (1996); Ling Ling Zou, Note, United States v. Winstar
Corporation: Implications for the Regulated Industries, 16 ST. LOUIS U. PUB. L. REV. 477 (1997).
49. Winstar, 518 U.S. at 843 (Souter, J., plurality opinion). See also Schwartz, Interim Report,
supra note 48, at 1184.
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50. See infra note 51; see also Schwartz, Interim Report, supra note 48, at 1184.
51. Winstar, 518 U.S. at 843, 910, 919, 924. The Justices aligned 4–1–3–(2). The plurality
opinion was joined by Justice O’Connor for parts I, II, III and IV-C. Id. at 843. Justice Ginsburg joined
Chief Justice Rehnquist’s dissenting opinion for parts I, III, and IV. Id. at 924 (Rehnquist, C.J.,
dissenting).
52. Thrifts profit on the difference between the interest they earn on mortgage loans and the
interest they pay depositors. Many thrifts had written mortgages during the 1960s and 1970s when
interest rates were low. Rising interest rates meant that the thrifts had to pay their depositors more,
increasing expenses, while the fixed rate mortgages meant that the thrifts were generating steadily less
money. Four hundred thirty-five thrifts failed between 1981 and 1983 alone. Id. at 845 (plurality
opinion).
53. Id. at 846–47.
54. Id. at 847. Congress’s first response was to deregulate the thrift industry, allowing cash-on-
hand to fall from five percent to three percent, but loosening the investment discipline only deepened
the crisis. Id. at 845–46.
55. Id. at 848.
56. The agreements were executed and incorporated at the same time as the Bank Board’s formal
approval of the merger deals. Id. at 848–56. The thrifts could count “supervisory goodwill” as an asset
equal to the amount of insolvency on their financial statements. The thrifts amortized the supervisory
goodwill over a forty-year period. Because few mortgages had that duration, the acquiring thrifts
would seem increasingly profitable as the below-interest-rate mortgages were paid off and the
goodwill remained on the books. Even though these mergers saddled the acquiring thrifts with
substantial financial liability, these accounting gimmicks made the purchasing thrifts look more
financially secure than they had looked premerger.
The three plaintiff thrifts in Winstar—Winstar, Glendale, and Statesmen—all had similar
agreements with the Bank Board. Id. at 861–68. For example, after negotiating with FSLIC, Glendale
thrift submitted a proposal to merge with a failing thrift to the Bank Board. Id. at 861. The Bank Board
approved the merger, or “Supervisory Action Agreement” (SAA), which incorporated Bank Board
Resolution No. 81-710, by which the Board ratified the SAA. Id. at 861–62. Resolution No. 81-710, in
turn, referred to a letter by Glendale’s independent accountant discussing the goodwill to be recorded
on Glendale’s books. Id. at 862. The letter referenced Bank Board Memorandum R-31b, which
permitted Glendale to recognize goodwill as an asset subject to amortization. Id.
The government did not contest that the parties understood that goodwill would satisfy regulatory
requirements. But the government claimed that the documents “simply reflect[ed] statements of then-
current federal regulatory policy,” not evidence that the government intended to be bound by the terms
of the merger plan. Id. The Supreme Court did not re-evaluate whether these documents, taken
together, created a contract, but instead relied on the Court of Federal Claims’s judgment that a
contract existed. See infra note 71.
57. Winstar, 518 U.S. at 856. By 1989, FSLIC itself was insolvent to the tune of $85 billion,
while in 1980 FSLIC had carried a positive balance of $6.46 billion. Id. at 847. By the time the
Supreme Court decided Winstar in 1996, the total cost of bailing out the thrift industry had grown to
$140 billion. Id.
58. Pub. L. No. 101-73, 103 Stat. 183. Among other things, FIRREA abolished FSLIC and the
Bank Board, merging the functions of these agencies into FDIC and the Treasury Department.
Winstar, 518 U.S. at 856.
59. Winstar, 518 U.S. at 856–57.
60. Id.
61. Id. at 857–58.
62. Id. Winstar itself represented the claims of three thrifts out of hundreds of similar claims
moving through the courts. See also Cuyahoga Metro. Hous. Auth. v. United States, 57 Fed. Cl. 751,
769 (Fed. Cl. 2003) (“Winstar . . . was one (actually a trio) of many cases spawned when the Congress
enacted [FIRREA].”).
63. Winstar, 518 U.S. at 860; see also Schwartz, Interim Report, supra note 48, at 1184.
64. Winstar, 518 U.S. at 860.
65. Id.
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The plurality began by noting that the agreements between the thrifts
and the Bank Board were contracts.71 Justice Souter argued that these
contracts did not bar the government from changing the way it regulates.72
Instead, the contracts merely bound the government to recognize the
accounting gimmicks it had approved.73 This was a promise to provide
something beyond the promisor’s control—that the government would
continue to recognize the gimmicks indefinitely.74 As such, the plurality
interpreted these agreements as risk-shifting agreements—promises to
insure the promisee against the risk of loss of nonoccurrence, or in this
case, the risk of loss from regulatory change.75
66. Id.
67. Id.
68. Id. at 859–60.
69. Id. at 871.
70. See Schwartz, Ideal of Congruence?, supra note 48, at 487.
71. Winstar, 518 U.S. at 860. The plurality reconstructed the documents in the contracts in some
detail. Id. at 861–68; see also supra note 56. However, the plurality ultimately accepted the Court of
Federal Claims’s determination that these documents effectuated a contract without independently
finding the existence of a contract. Justice Scalia and Chief Justice Rehnquist also apparently accepted
the characterization of the agreements as contracts. Id. at 919, 929. However, some have argued that
“Winstar avoids the logically prior issue in the case, whether the agreements involved are contracts,
and provides insufficient guidance for future problems involving regulatory action ostensibly cast in
the form of an ‘agreement.’” Malloy, supra note 48, at 410, 447–49. Indeed, whether the government
entered a contract has been an issue in several post-Winstar cases in which the unmistakability
doctrine has been discussed. See infra note 134.
72. Winstar, 518 U.S. at 868.
73. Id.
74. Id. at 868–69.
75. Id. In the three instances in Winstar, the government became liable for breach “[w]hen the
law as to capital requirements changed [rendering] the Government . . . unable to perform its promise
. . . . In the case of Winstar and Statesman, the Government exacerbated its breach when it seized and
liquidated [the] thrifts for regulatory noncompliance.” Id. at 870. The plurality argued that courts
typically regard promises to provide something outside of the promisor’s control as risk-shifting
agreements. Id.
76. Id. at 860.
77. Id. at 871. The government argued that “the agreements . . . should not be construed to waive
Congress’s authority to enact a subsequent bar to using supervisory goodwill . . . to meet regulatory
capital requirements.” Id.
78. Id. Arguing that the government mistook “the scope of the unmistakability doctrine,” Justice
Souter emphasized that the thrifts did not want to enjoin the government from changing the law. Id.
Instead, the thrifts “simply claim[ed] that the Government assumed the risk that subsequent changes in
the law might prevent it from performing, and agreed to pay damages in the event that such failure to
perform caused financial injury.” Id.
79. Id. at 871–78. Justice Souter explained that one of the fundamental differences between the
American and British parliamentary systems is the capability of the American Congress, under certain
circumstances, to bind its successors. This ideal of limited government is reflected in the Constitution.
Id. at 872–74. The unmistakability doctrine originated in Chief Justice Marshall’s application of the
Contract Clause to state governments’ own contracts and served two purposes: first, to protect state
sovereignty, and second to avoid constitutional issues about state authority to limit subsequent
exercises of its own sovereign power by contract. Id. at 875. In the early cases applying the
unmistakability doctrine, private parties who had contracted with states were suing to invalidate state
laws that abrogated their contracts. Id. Since in some of these earlier cases the federal government had
been deemed liable under its own contracts notwithstanding the unmistakability doctrine—which the
Court had imported into contract suits against the federal government in the 1930s—Justice Souter
concluded “it is clear that the National Government has some capacity to make agreements binding
future Congresses by creating vested rights.” Id. at 876.
80. Id. at 878. Justice Souter defined the doctrine as requiring that “a contract with a sovereign
government . . . not be read to include an unstated term exempting the other contracting party from the
application of a . . . sovereign act.” Id. In a footnote, Justice Souter explicitly cross-referenced his
discussion of the sovereign acts doctrine, supporting the argument that Justice Souter believed the two
defenses were conceptually linked. Id. at 878 n.22; see also Schwartz, Interim Report, supra note 48,
at 1194. Justice Souter noted that because the effects of enforcement are dispositive, the particular
remedy sought is only dispositive if the effect of enforcement would be to block the exercise of a
sovereign power. Id. at 879–80. Justice Souter then described a spectrum of potential contractual
claims against the government. “At one end . . . are claims . . . that could not be recognized without
effectively limiting sovereign authority. . . . At the other end are contracts . . . [in which] no sovereign
power is limited by the Government’s promise.” Id. For example, “humdrum supply contracts” do not
limit the government’s sovereign authority. Id. at 880.
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the contract does not block any sovereign powers, the unmistakability
doctrine does not apply.81
Justice Souter then argued that enforcing the contracts in Winstar
would not prevent the government from implementing the new regulations
prospectively against all thrifts. Instead, as mere risk-shifting agreements,
enforcing the contracts would merely require the government to pay
damages to those thrifts that had been promised the regulatory treatment.82
As such, awarding damages in Winstar would not amount to a limitation
on the government’s sovereign power, and the unmistakability doctrine
was not implicated.83 Finally, Justice Souter rejected the dissent’s notion
that “an unmistakably clear ‘second promise’” is required to render the
government liable.84
Justice Souter then disposed of the government’s second and third
defenses, the express delegation and reserved powers doctrines.85 The
plurality held that the reserved powers defense—that certain essential
government powers cannot be bargained away—failed, because the
contracts were risk-shifting agreements that granted no essential reserved
powers.86 The express delegation doctrine, on the other hand, requires that
any government agency’s authority to contract away the government’s
sovereign powers must be granted expressly by statute.87 The plurality
held that this defense also failed, because no sovereign power had been
81. Justice Souter also argued that this limited reading of the unmistakability doctrine, which
applies only when the government is actually or constructively enjoined from exercising its sovereign
power, is more in line with ordinary contract principles that damages are the default remedy for
breach. Id. at 885.
The Second Circuit identified such a situation in Doe v. Pataki, 481 F.3d 69 (2d Cir. 2007). In
Doe, a class of registered sex offenders sued New York in federal court to prevent the enforcement of
new registration laws. Id. at 70–75. The new laws conflicted with less restrictive registration
requirements in a consent decree entered into with the class in earlier litigation. Id. Because the relief
sought by the sex offenders was an injunction prohibiting New York from enforcing the new laws, the
Second Circuit held that the unmistakability doctrine applied and defeated the sex offenders’ claims.
Id. at 79.
82. Winstar, 518 U.S. at 881. Justice Souter commented that the thrifts “seek no injunction
against application of the law to them” and that the thrifts “acknowledge that the Bank Board and
FSLIC could not bind Congress . . . not to change regulatory policy.” Id.
83. Id.
84. Id. at 887. Justice Souter stressed that the government had indicated that it would bear the
costs of insolvent thrifts in the first instance by insuring the thrift industry through FSLIC. Id. at 883.
He also noted that if the government were allowed to breach its contracts without being held liable for
damages, it would “compromis[e] the Government’s practical capacity to make contracts.” Id. at 884–
85.
85. Id. at 888–91.
86. Id. at 888–89.
87. Id. at 889–90.
contracted away, and that, in any event, FSLIC and the Bank Board had
ample statutory authority to make the agreements they had entered into.88
The government’s fourth and final argument was that FIRREA was a
sovereign act, and the United States cannot be held liable for its sovereign
acts.89 The plurality rejected this for two reasons. First, the sovereign acts
doctrine did not apply to the facts of Winstar, and second, even if it did
apply it would not excuse the government.90 According to the plurality, the
applicability of the sovereign acts doctrine depends on the capacity in
which the government acted when it enacted the statute rendering
performance of the contract in question legally impossible.91 If the
government acts in its capacity as a contractor in enacting the statute, the
sovereign acts defense does not apply and the government is liable.92 But
if the government acts as sovereign in enacting the statute, the sovereign
acts defense places the government in the same capacity as a private
contractor invoking the impossibility defense.93 Justice Souter94 explained
that the government acts as sovereign when it passes statutes free from
self-interest, but acts as a contractor when it passes statutes “tainted by a
governmental object of self-relief.”95 Justice Souter defined governmental
self-relief as “instances in which the Government seeks to shift the costs
of meeting its legitimate public responsibilities to private parties.”96
Because FIRREA shifted the costs of the government’s public
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Justice Scalia agreed with the plurality that the government was liable
for breach due to the passage of FIRREA,110 but disagreed with the
plurality’s characterization of the contracts as “risk-shifting agreements.”
Justice Scalia noted that the plurality’s distinction between risk-shifting
agreements and contracts was absent from precedent,111 and disputed the
plurality’s conclusion that ordinary contract law would characterize the
contracts as mere risk-shifting agreements.112 Justice Scalia argued that
105. Justice Breyer also argued that holding the government liable is necessary to preserve the
government’s credit as a contracting partner, and pointed to the Tucker Act as evidence of Congress’s
intent allow such contractual liability. Id. at 913–14. Justice Breyer granted the fact that the
government’s status as one of the interested contractors “may well change the underlying
circumstances, leading to a different inference as to the parties’ likely intent—say, making it far less
likely that they intend to make a promise that will oblige the government to hold private parties
harmless in the event of a change in the law.” Id. However, the same intent-centered analysis can be
undertaken without resorting to the unmistakability doctrine. Under this formulation, the government’s
unmistakable promise to be held liable is at least presumptively evidence of such an intent, but its
absence is not dispositive evidence of the lack of intent.
106. Id. at 913–14. Justice Breyer argued that the contracts expressly promised the government
would indemnify the thrifts if the law changed, noting that in the past the government had been liable
based only on implied promises. Id.
107. Id. at 914–18.
108. Id. at 914 (“[I]t is not clear that the ‘unmistakability’ language was determinative of the
outcome in those cases.”); see also id. at 918 (theorizing that the “doctrine” of unmistakability may
have stemmed from special circumstances that would require more to convince the Court of the
existence of an agreement than in ordinary government contract cases).
109. Id. at 916 (“A second reason to doubt the Government’s interpretation of the
‘unmistakability’ language is that, in all these cases, the language was directed at the claim that the
sovereign had made a broad promise not to legislate, or otherwise to exercise its sovereign powers.”).
Justice Breyer then distinguished a promise not to change the law from a promise to indemnify a
contracting partner in the event the law changes. Id.
110. Id. at 919 (Scalia, J., concurring).
111. Id.
112. Id.
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113. Id.
114. Id. at 920.
115. Id. Contrary to the plurality, Justice Scalia asserted that the Court had applied the doctrine of
unmistakability to situations analogous to Winstar in the past “where a sovereign act is claimed to
deprive a party of the benefits of a prior bargain with the government.” Id.
116. Id.
117. Id. at 920–21. Justice Scalia noted:
When the contracting party is the government, . . . it is simply not reasonable to presume an
intent of that sort. . . . [I]t is reasonable to presume (unless the opposite clearly appears) that
the sovereign does not promise that none of its multifarious sovereign acts . . . will
incidentally disable it or the other party from performing one of the promised acts.
Id.
118. Id. The essence of the contracts—the totality of the government’s consideration—was an
unmistakable promise to indemnify the acquiring thrifts from regulatory change. Id.
119. Id. at 921.
120. Id. at 922–24.
121. Id. at 923.
122. Id. at 923. The difference between the plurality and concurrence on this point is subtle: the
plurality felt the express delegation doctrine did not apply because no sovereign act was implicated,
while the concurrence felt that the express doctrine did apply but was overcome by the statutes
granting FSLIC and the Bank Board authority to make the agreements.
Scalia concluded by arguing that the sovereign acts doctrine “adds little, if
anything at all, to the ‘unmistakability’ doctrine,” because the sovereign
acts defense would be avoided whenever unmistakability would be
avoided.123
The Chief Justice’s dissent set forward few positive statements of the
law and instead largely attacked the other three opinions.124 The Chief
Justice asserted that the plurality’s characterization of the contracts as risk-
shifting agreements was precisely what the unmistakability doctrine was
devised to guard against.125 He also argued that applying the “public and
general” test to Winstar should reach the opposite conclusion, as FIRREA
was designed to be public and general, and was not merely intended to
breach the contracts with the thrifts.126 The Chief Justice argued that it was
contradictory for Justice Scalia, despite claiming to apply the
unmistakability doctrine, to enforce an implicit promise.127 Moreover, the
government could have promised certain regulatory treatment without
further promising to pay in the event that the regulatory regime
changed.128 While the other Justices only afforded the government the
same status as a private party, the Chief Justice argued instead that “men
must turn square corners when they deal with the Government.”129 This
requirement, according to the dissent, did not arise out of ancient
sovereign privilege, “but from the necessity of protecting the federal
123. Id. at 923–24. Under this reading, both defenses would be avoided “whenever it is clear from
the contract in question that the Government was committing itself not to rely upon its sovereign acts
in asserting . . . the doctrine of impossibility, which is another way of saying that the Government had
assumed the risk of a change in its laws.” Id.
124. As such, its presentation here is greatly abbreviated. Id. at 926 (Rehnquist, C.J., dissenting).
125. Id. The Chief Justice also noted that despite the existence of the broader, harsher
unmistakability doctrine, “[t]he Government’s contracting authority has survived from the beginning
of the Nation with no diminution in bidders, so far as I am aware, without the curtailment of the
unmistakability doctrine announced today.” Id. at 929.
126. Id. at 933. He noted that FIRREA applied generally to all thrifts, not merely to those that had
contracted with the Bank Board to purchase failing thrifts. Id.
127. Id. The dissent argued that this was in fact the same rule that is applied to contracts between
private parties, and that more should be required to show that the government breached its contract
than is required under the ordinary rules of contract interpretation—a principle embodied in the
unmistakability and sovereign acts doctrines. Id.
128. Id. The Chief Justice pointed out that Justice Breyer relied on this illusory fact while noting
that “it might seem unlikely” that the government intended to “promise that . . . the Government . . .
[would] hold private parties harmless in the event of a change in the law.” Id. at 937.
129. Id. at 937 (citing Rock Island, Ark. & La. R.R. Co. v. United States, 254 U.S. 141, 143
(1920)).
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130. Id. The dissent concluded that the unmistakability doctrine and the sovereign acts doctrine
are linked, and it would be rare for one to arise without the other, but Justice Ginsburg did not join that
portion of the dissent. Id. at 924, 937.
131. Id. at 937.
132. See, e.g., Tamarind Resort Assocs. v. Virgin Is., 138 F.3d 107 (3d Cir. 1998) (environmental
protection); United States v. Westlands Water Dist., 134 F. Supp. 2d 1111 (E.D. Cal. 2001) (natural
resources distribution); Cuyahoga Metro. Hous. Auth. v. United States, 57 Fed. Cl. 751 (Fed. Cl. 2003)
(low income housing).
133. See R.I. Bhd. Corr. Officers v. Rhode Island, 264 F. Supp. 2d 87, 96–97 (D.R.I. 2003)
(holding that statutorily created incentive pay programs were not contracts and as such Winstar did not
apply, because “[t]he dispositive fact in Winstar was the existence of a bargained-for exchange
between the regulators and the acquiring institutions”); Celtronix Telemetry, Inc. v. FCC, 272 F.3d
585, 590 (D.C. Cir. 2001) (denying plaintiff’s claim that change in FCC rules was a breach of contract
as no contract existed); First Annapolis Bancorp, Inc. v. United States, 75 Fed. Cl. 263, 275–76 (Fed.
Cl. 2007) (Winstar-type FIRREA litigation extensively examining whether a contract was formed
between FSLIC and the acquiring thrift). See also supra note 71.
134. See Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d. 15, 23 (D.D.C. 1998)
(holding that cooperation “between a federal agency and a private entity, wherein the government
sought to benefit from the private entity’s undertaking,” along with the allegation of “the existence of a
contractual arrangement” and the government’s exercise of “its authority as a sovereign to enact law
that had the effect of changing the alleged contractual relationship” sufficiently implicated Winstar to
deny the government’s motion to dismiss).
135. Mobil Oil Exploration & Producing Se., Inc. v. United States, 530 U.S. 604, 619–20 (2000)
(noting that the government did not raise unmistakability or other sovereign defenses on appeal). But
see Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109, 1138–41 (10th Cir. 2003) (Seymour, J.,
concurring) (questioning why the unmistakability doctrine was not raised by the parties, because
enforcement of the defendants’ demands that no water be taken for conservation of endangered species
amounted to an injunction against the government’s sovereign power).
At least one court has held that a prerequisite to any discussion of the sovereign defenses is that
the government must waive sovereign immunity as to that type of claim. See Research Triangle Inst. v.
Bd. of Governors of the Fed. Reserve Sys., 132 F.3d 985, 989–90 (4th Cir. 1997). On the other hand,
Chief Justice Rehnquist in his Winstar dissent argued that sovereign immunity had not been waived
under the Tucker Act as to the type of claims that the plaintiff thrifts had asserted, as the government
waived sovereign immunity as to promises implied in fact. Winstar, 518 U.S. at 930–31 (“[T]he
principal opinion’s reading of additional terms into the contract so that the contract . . . insure[s] the
promisee against loss arising from the promised condition’s nonoccurrence seems the very essence of
a promise implied in law, which is not even actionable under the Tucker Act.”).
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contract, and the government raised the sovereign acts and unmistakability
defenses.160
The United States District Court for the Eastern District of California
held that neither doctrine shielded the government from liability on the
counterclaim.161 Although seven Winstar Justices held the government
liable, the Eastern District pointed out that the opinions were highly
fragmented.162 The district court identified four components of the
unmistakability analysis from Winstar, counting how many Justices
supported each component.163 First, six Justices had agreed that the
unmistakability doctrine applied to all government contracts.164 Second,
six Justices had agreed that the unmistakability doctrine requires a second
promise not to legislate over the contract.165 Third, only four Justices had
agreed that the applicability of the unmistakability doctrine turns on the
implication of a sovereign power.166 Fourth, Justice Scalia had
characterized the unmistakability doctrine as the converse of the ordinary
contract presumption that parties promise not to make their own
performance impossible.167
Despite counting six Justices who had agreed that the unmistakability
doctrine applies to all government contracts, the district court did not
apply the doctrine.168 Instead, it found that the Winstar plurality and
Justice Scalia’s concurrence would have agreed about the judgment under
the facts of Westlands. According to the court in Westlands, the Winstar
plurality would not have applied the unmistakability doctrine because the
contract at issue did not implicate a sovereign power.169 Because the
contract’s essential term was the price of water, under Justice Scalia’s
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170. Id.
171. Id. at 1151.
172. 57 Fed. Cl. 751 (Fed. Cl. 2003).
173. Id. at 753.
174. Id. at 753–54.
175. Id. at 754. In the early 1980s, HUD commissioned “comparability studies” to determine the
rent charged at comparable housing units and amended its regulations to cap payments to Section 8
project owners—such as Cuyahoga—at the rate determined by the comparability studies. Id.
176. Id. at 757.
177. Id. at 758. The damages sought by Cuyahoga were based on the difference between the
variable contract rates and the lower rents actually paid by the government between the years 1994 and
1999, the year suit was filed.
178. Id. at 763.
179. Id. at 770. The court conducted an extremely thorough analysis of all the opinions in the
Winstar plurality and exhaustively analyzed the history of the unmistakability doctrine. See id. at 763–
69.
180. Id. at 763–69. The court argued that even Chief Justice Rehnquist hinted that certain
governmental acts might make the government liable for breach. Id. at 772 n.9.
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191. Id.
192. Id. at 867.
193. Id.
194. Id.
195. Id.
196. Id.
197. Id. at 866.
198. Id. at 869.
199. Id. at 870.
200. Id.
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214. Id.
215. Id. at 112.
216. Id.
217. Id.
218. Id.
219. Id. For purposes of illustration, had the CZMC denied a permit for a resort at or below the
minimum level guaranteed by the contract—150 units—then a breach might have existed for which
the unmistakability doctrine would not have protected the government.
220. Id.
221. 431 F.3d 1360 (Fed. Cir. 2005).
222. Id. at 1361.
223. Id. at 1362.
224. Id.
225. Id. The intangible asset was supervisory goodwill, amortized over a twenty-five year period.
Id. at 1362–63. This scheme is similar to the accounting schemes agreed upon in Winstar. See supra
note 56 and accompanying text. But in Winstar, the defunct thrifts had been acquired by the plaintiff
thrifts, which were distinct corporate entities. In Franklin, the acquiring thrift was a new company set
up by the defunct thrift’s owners to hide its own liabilities. See id. at 1361 (“[The insolvent thrift]
prepared a business plan . . . under which [it] would be acquired by Franklin Financial, a holding
company formed by [the insolvent thrift’s own] board of directors.”).
226. Id. at 1362.
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that Justice Souter and the Chief Justice “agreed that the parties could
have contracted only for temporary forbearance, but disagreed as to
whether a clear statement was necessary.”235 The court, citing Marks, held
that because the plurality “required a clear statement to legitimate a
temporary forbearance,” it was the narrowest and as such was binding.236
However, despite finding that the plurality from Winstar controlled, the
Federal Circuit concluded that Franklin could not recover on the contracts
because the successor regulation clause was a clear statement that shifted
the risk of regulatory change to the thrift.237
II. ANALYSIS
rationale from plurality opinions, and suggests that lower courts accord
Winstar and other plurality opinions more than just persuasive authority.
242. Marks v. United States, 430 U.S. 188, 193 (1977) (citing Gregg v. Georgia, 428 U.S. 153,
169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).
243. See supra notes 31–36 and accompanying text.
244. Franklin, 431 F.3d at 1368.
245. In fact, the clear statement shifting the risk of regulatory change to the thrift in Franklin
would probably have been enough to render the thrift liable, even if the unmistakability doctrine did
not apply as it did under Justice Souter’s plurality.
246. Cuyahoga, 57 Fed. Cl. at 772 n.29.
247. Id. at 777. In reaching this conclusion, the court purported to find grounds that all nine
Winstar Justices would agree with. Id.
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252. Yankee Atomic Elec. Co. v. United States, 112 F.3d 1569, 1579 (Fed. Cir. 1997).
253. See infra note 254.
254. In Winstar, Justice Scalia and Chief Justice Rehnquist used similar words to describe the
unmistakability doctrine, and both claimed to apply the doctrine. Under Justice Scalia’s application of
the sovereign acts and unmistakability defenses, the government’s liability turns on the risks it
assumes in the contract. In entering into fixed-price agreements for the sale of enrichment services, the
government probably assumed the risk of regulatory change under Justice Scalia’s analysis. Justice
Scalia felt that an implied promise was satisfactory to overcome the unmistakability doctrine if the
issue was central to the parties’ contract and the government clearly intended to assume the risk.
Justice Scalia felt that each of these conditions were satisfied in Winstar. Winstar v. United States, 518
U.S. 839, 919–24 (1996). The Chief Justice, on the other hand, felt that the unmistakability doctrine
blocked all implicit promises to shift the risk of regulatory change to the government, and that such
promises had to take the form of unmistakably clear second promises. Id. at 924–37. The Chief Justice
felt that this standard applied even to damage suits, while Justice Scalia seemed to differentiate
between suits for damages and suits to enjoin the enforcement of a law. Id. at 923, 926. These
differences between the Chief Justice’s and Justice Scalia’s conceptions of the unmistakability
doctrine make the dual majority method particularly unsuitable for Winstar analyses.
255. Kimura, supra note 1, at 1602–03. In the abstract, it is possible that the concurrence and
dissent may be using the same phrases to mean the same thing in some instances. But the likelihood
that the concurrence and dissent actually mean somewhat different things, even though they use the
same phrases in some instances (as evidenced by Yankee Atomic’s misapplication of Justice Scalia’s
use of the phrase “unmistakability doctrine”), cautions against borrowing bits and pieces of each
opinion. Nevertheless, if the dissent contains language such as “we agree with the concurrence as far
as propositions x and y, but disagree as to z, and thus reach a different result,” it may be safe to assume
that these Justices actually agree as to propositions x and y.
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256. See Waters v. Churchill, 511 U.S. 661, 685 (1994) (Souter, J., concurring) (arguing that a
controlling majority can be drawn from propositions supported by majorities made up of Justices who
either dissented or concurred); see also United States v. Johnson, 467 F.3d 56, 65–66 (1st Cir. 2006).
257. Many cases have cited Winstar for its result only. See, e.g., Ace Prop. and Cas. Ins. v. Fed.
Crop Ins. Corp., 440 F.3d 992, 1001 (8th Cir. 2006) (citing Winstar for the proposition that damages
could be awarded against a federal agency for breach of contract despite the fact that Congress
required the federal agency to breach the contract at issue).
As noted, I have not identified any cases that have explicitly rejected Winstar’s reasoning because
it was a plurality. On the other hand, one case that cited Winstar disavowed the reasoning of a different
plurality decision, holding that only the result was binding. In Commonwealth Edison Co. v. United
States, 46 Fed. Cl. 29, 39–40 (Fed. Cl. 2000), the Court of Federal Claims rejected the reasoning from
Eastern Enters. v. Apfel, 524 U.S. 498 (1998), because the lack of common ground between the
opinions rendered the Marks test inoperative. Commonwealth Edison, 46 Fed. Cl. at 39 (“[N]o part of
the plurality’s reasoning constitutes binding precedent. The plurality [and] concurrence agree in result
and focus on similar facts, but share no common denominator in terms of legal rationale. As such, the
only part of the plurality opinion that is binding is the specific result . . . .”).
258. Tamarind Resort Assocs. v. Virgin Is., 138 F.3d 107, 112 (3d Cir. 1998).
259. Admittedly, it is unclear whether the result in Tamarind would have changed had the court
applied the reasoning from Winstar. While the contract in Tamarind may not have contained
unmistakable terms limiting the government’s right to limit development, the contract did contain a
clause that the government would not change the law to impair the contract, arguably shifting the risk
of regulatory change to the government. This clause might even have been interpretable as an
unmistakably clear second promise not to change the law, satisfying even the Chief Justice’s rigorous
standards. On the other hand, the CZMA might have been a public and general act, so that even if the
unmistakability doctrine did not relieve the government from liability, the sovereign acts doctrine
might have. In any event, future courts undoubtedly would have benefited from a more detailed
analysis of these issues by the Third Circuit.
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Critics argue that plurality decisions are complex, costing courts many
hours in analyzing the opinions.263 But not every application of a plurality
decision raises the need for such lengthy devotion of resources by the
lower court. In fact, there is only difficulty in applying a plurality if the
lower court feels that the plurality and any concurring opinions would
come to different conclusions over the facts before the lower court.264
Otherwise, the court can use the simple reconciliation method, apply both
opinions, and feel confident that the Supreme Court would have come to
the same conclusion.265
On the other hand, the complexity of plurality opinions often reflects
the underlying complexity of the normative, ethical, or moral issues
involved.266 This claim is distinct from the claim that the Supreme Court
discovers rather than makes law. The Supreme Court makes law with
every judgment it hands down.267 However, the law-making process can
be seen as an institutional response to the discovery and resolution of
normative, ethical, or moral problems. In the case of plurality opinions,
there is a disconnect between the need to address these issues and the
institutional process designed to address them. This disconnect does not
necessarily render the Supreme Court a lesser institution for not being able
to immediately and satisfactorily resolve these thorny normative problems.
263. See supra note 3. Critics of plurality opinions might point out that beyond the superficial
factual and legal complexity often found in plurality opinions, the uncertain precedential weight
inherent in plurality decisions further frustrates lower courts in attempting to apply pluralities.
Admittedly, with each application of a plurality decision, a second tier of analysis might need to be
engaged. We must not only ask how factually analogous the cases are to determine whether the
plurality is applicable, but we must also ask to what degree the plurality serves as binding authority.
264. See United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1151 (E.D. Cal. 2001).
265. If the personnel on the Court has changed since the plurality, some might argue that this
analysis should take into account how the current Court, as opposed to the Court that handed down the
plurality, would resolve these issues. But this analysis could also be used in predicting the persuasive
force of clear-majority decisions, and it seems similarly inappropriate in both instances. While litigants
may want to take such changes into account in deciding whether to settle or what arguments to pursue,
for courts, at least, respect for stare decisis would require an earlier precedent to be obeyed regardless
of current changes to the higher court’s personnel. If the higher court wants to change the precedent, it
can do so on appeal from the lower court.
266. Novak, supra note 1 passim.
267. See Bernadette Meyler, Towards a Common Law Originalism, 59 STAN. L. REV. 551, 557
(2006) (discussing the difference between judicial discovery and manufacture of law).
268. See West, supra note 14, at 1955 (“[T]he principal job of the Supreme Court is to decide
cases by making judgments. Coming in a strong second is the duty to issue opinions, which ‘are
simply explanations of those judgments or those votes on judgments.’”); see also Edward A. Hartnett,
Ties in the Supreme Court of the United States, 44 WM. & MARY L. REV. 643, 661 (2002) (“The
fundamental job of a court is to decide cases by issuing judgments; the fundamental job of a judge on a
multimember court is to vote on the judgment to be entered by that court. Opinions are simply
explanations of those judgments or those votes on judgments.”); Novak, supra note 1, at 757 (“The
Supreme Court performs two essential functions: it resolves the particular controversies that come
before it and provides guidance for lower courts in deciding similar cases in the future. . . . [Both] are
better served when the Court sets out a clear and persuasive rationale assented to by a majority of
Justices.”).
269. If Congress considered fifty proposed bills and passed only forty-nine of them, has Congress
abdicated its lawmaking authority? Not in a sense that renders it a normatively lesser institution. In
fact, if Congress passed every proposed bill, or enacted law covering every area of its authority under
the Constitution, it would almost certainly be a lesser institution.
270. Some have argued that there are no external constraints on judges to apply any precedent at
all. See Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L.
REV. 817 (1994). Courts and judges are not punished for not applying precedent, so the source of
obedience to precedent is internal—self-imposed by judges on themselves. Id.
271. See supra note 24.
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272. Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in
Collegial Courts, 81 CAL. L. REV. 1, 45 (1993):
Given the doctrinal disarray that leads to plurality opinions of the sort we have been
considering, the participatory approach seems superior. In the face of such disarray,
predictions about future doctrinal equilibria are dicey at best, and in the face of such disarray,
lower court judgment, experience, and argument are especially useful to the high court.
273. See supra note 7.
274. In fact, prior to Chief Justice Marshall’s reforms doing away with seriatim opinions, this was
the dominant method of legal analysis.
275. Harvard Note, supra note 1, at 1128 (“[P]lurality decisions [are] symptomatic of a
fundamental flaw in the Supreme Court’s current approach to decisionmaking, which relies
excessively on value-laden ‘substantive reasoning.’”); see also id. at 1140–46.
276. United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1151 (E.D. Cal. 2001).
277. Id.
278. Id.
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Unlike the dual majority method, this method does not apply the
reasoning of the dissent, assuming that some difference in the dissent’s
understanding of the law motivated the dissenting Justices to argue for a
different resolution. Unlike the narrowest grounds method, this method
does not seek out one controlling opinion or one set of controlling
propositions from the concurring opinions. It simply finds that these
opinions would not produce different results under the facts of the new
case, and then it reaches that result.
However, there are at least two instances where it would be
inappropriate to apply the reconciliation method. First, if the plurality and
concurring opinions would produce different results, a more thorough
analysis should be undertaken to explain why the different opinions would
reach different results. Second, if the plurality and concurrence would
reach the same result, but it is a different result than in the original
plurality decision, further analysis is again called for.279
279. How much further analysis is necessary depends on which of these two instances is
implicated. If the plurality and lead concurrence reach different outcomes from each other in the new
case, the court should apply the greater analysis of the policy space method. If, on the other hand, the
plurality and concurrence seem to agree in the new case, but reach a different outcome from the earlier
case, the court should explain why, but need not undertake the policy space method.
struggling with the plurality decision. Provided that the court explicitly
states how and why it reached its conclusion, the policy space method
should generally increase the coherence of the law and provide guidance
to other courts confronting similar issues. If the Supreme Court revisits the
issue, it will also be framed more clearly and perhaps can be definitely
resolved. On the other hand, if courts ignore this level of analysis, the
issues that prevented the Supreme Court from writing a majority opinion
may remain confused.280 Fully engaging the plurality opinion should
clarify the underlying issues and how the law should respond.281
For example, a court applying the policy space method to Winstar’s
treatment of the unmistakability doctrine might organize the leading
opinions in order of lowest to highest standard that the plaintiff-contractor
suing the government would have to overcome.282 The lower court should
first ask whether the agreement was risk-shifting and whether it contained
an unmistakably clear second promise to shift the risk of regulatory
change onto the government. Justice Souter would not apply the
unmistakability doctrine if the contracts were risk-shifting, and he would
not require an unmistakably clear second promise if the doctrine
applied.283 Justice Scalia would apply the doctrine, even if the government
did not explicitly promise not to change the law, so long as the “sole
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within the plurality will become and the easier it will be for future cases to
address these issues.285
The most important goal of the policy space method is to encourage
analysis based on clearly articulated reasons. This method seeks to
combine the basic fairness concern embodied in the maxim of treating like
cases alike, the related predictive value of reliance on precedent, and the
value of explicitly articulated reasoning derived from analysis and
application of the plurality decision to new situations.286
CONCLUSION
Obedience to precedent ensures that like cases are treated alike and that
the legal system continues to function efficiently. Plurality decisions,
however, exist on the margin of the system of precedent, and are
symptoms of the normative complexities in the facts before the Court,
often arising in difficult cases with no easy answers. Should the Supreme
Court be criticized for handing down plurality decisions? No. Supreme
Court Justices should not forget their own insights or discard their own
analysis to join an opinion for the sake of apparent unanimity. If a Justice
disagrees with the reasoning of other Justices, that Justice should articulate
285. It is possible that the Court may, in some instances, intentionally issue plurality opinions. See
Davis & Reynolds, supra note 1, at 86 (considering whether the Court may have “deliberately chosen”
to issue plurality opinions). Perhaps the Justices decided that the binding legal rule that would result
from a clear majority in a specific case might have unforeseen or undesirable results in analogous
situations.
Carrying this speculation to Winstar, the Court may not have wanted to adopt a rule that would
repeatedly saddle the government with liability in other types of contract disputes. By issuing a
plurality, the Court made it less likely that lower courts would apply the anti-government precedent
without questioning whether it was the right rule in a particular circumstance. Assuming for a moment
that the Court really does issue plurality decisions intentionally, part of this motivation may be to
resolve a particular dispute without creating an ironclad rule that will not be questioned, but instead
will generate dialogue about the various reasons for adopting an opinion. This is all the more reason to
use the simple reconciliation and policy space methods, as these methods are designed to generate this
dialogue.
286. See Herbert Wechsler, Toward Neutral Principals of Constitutional Law, 73 HARV. L. REV.
1, 15 (1959) (“[T]he main constituent of the judicial process is precisely that it must be genuinely
principled, resting with respect to every step that is involved in reaching judgment on analysis and
reasons quite transcending the immediate result that is achieved.”); G. Edward White, The Evolution of
Reasoned Elaboration: Jurisprudential Criticism and Social Change, 59 VA. L. REV. 279, 285, 301
(1973) (describing “Reasoned Elaboration” as a “dialectical process” that places an affirmative
normative duty on judges “to give reasons for [their] decisions . . . to allow the public to evaluate the
manner in which [they were] performing [their] office”); see also In re Krynicki, 983 F.2d 74, 75 (7th
Cir. 1992) (Easterbrook, J.) (“Judges deliberate in private but issue public decisions after public
arguments based on public records. The political branches of government claim legitimacy by election,
judges by reason. Any step that withdraws an element of the judicial process from public view makes
the ensuing decision look more like fiat . . . .”); Novak Note, supra note 1, at 758 n.9.
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those reasons. Then, lower courts can take up and expand on these issues
in light of new situations. When the Court again addresses the issue, it
should have plenty of lower court analyses to review. Plurality decisions
thus initiate a type of normative dialogue between the Supreme Court and
the lower courts, one which can contribute to the development of the law
and help the law meet the demands of a changing society,
The most compelling post-Winstar results have been in cases with the
most thorough analysis, both detailing the similarities and differences
between the new facts and those of Winstar and analyzing the implications
of ruling in favor of either the government or the injured contractor. If the
plurality is applicable, lower courts should analyze how and why each of
the arguments in the plurality opinion should or should not apply. The
recognition that plurality opinions are and should be more than merely
persuasive opens the door for the kind of analysis that can best resolve the
dispute that split the Supreme Court in the first place.
James A. Bloom∗
∗ B.A. History and Philosophy (2003), Tulane University; J.D. Candidate (2008), Washington
University School of Law. I would like to thank Pauline Kim, Margo Schlanger, and Bruce LaPierre
for their insight and encouragement, as well as Eoghan Keenan, Scott Koelker, Ryan Wilkins, Lisa
DeBord, Ben Warr, Bryan Pennington, and Matt Walczewski for their comments. I am especially
grateful to Camille and my friends and family for their support.